Ten words cost VW dear

Courtesy of our Global Advertising Lawyers’ Alliance colleagues, Hall Dickler Kent Goldstein and Wood in New York, we report on an extraordinary case in which an IOWA artist/poet got a share of the profits from a car ad.

Topic: Copyright

Who: IOWA artist Brian Andreas and Volkswagen

Where: The Eighth Circuit US Court of Appeals

When: August 2003

What happened:

Our Global Advertising Lawyers' Alliance colleagues Hall Dickler Kent Goldstein & Wood of New York reported by their excellent 'Adlaw by request' on line advertising law service (www.adlawbyrequest.com) that following alleged use of his material in Volkswagen advertising on TV, IOWA artist Brian Andreas would receive nearly $1m compensation for breach of copyright.

It all started in 1994 when Andreas created a drawing called 'Angels of mercy' with the verse 'Most people don't know that there are angels whose only job is to make sure you don't get too comfortable and fall asleep and miss your life'.

In 1999 a US TV ad for Volkswagen's Audi TT Coupe showed the car set amongst statues of angels in a garden with the voice over 'I think I just had a wake up call, and it was disguised as a car and it was screaming at me not to get too comfortable and fall asleep and miss my life'.

During the 6 months the ad ran, sales of the Audi TT were far better than expected, so much so that the ad agency that created it got a substantial bonus. This aspect featured prominently in Andreas' subsequent action for copyright infringement against Volkswagen and the advertising agency.

The defending parties denied all knowledge of Andreas' work before they created the commercial, but nevertheless a Federal Court jury awarded Andreas $965,000 in 2001. $570,000 was against Volkswagen and the balance against the advertising agency, the damages representing a share of the profits which Andreas claimed were directly derived from the infringement of his copyright.

On the first appeal, the award against Volkswagen was rescinded owing to lack of clear evidence that the advertisement complained of directly led to cars being bought. The Eighth Circuit Court of Appeal, however, reinstated the original jury award. It took the view that it was up to Volkswagen to show what factors other than the television commercial caused the higher than expected car sales, and this it had failed to do.

Why this matters:

The case underlines the importance for advertisers of ensuring that, as far as possible, any advertising material produced by their agencies is original, and conducting full enquiries and taking suitable advice whenever there is any suspicion at the time of producing the advertising material in question that some or all of it might be 'inspired' by existing third party material.

The client will also want to ensure that in the written contract governing the provision of the agency's services there is an agency warranty dealing with the originality of the material it supplies and an agency indemnity in respect of any costs or damages suffered by the client as a result of the warranty's breach.

The case also highlights that in copyright, it is the quality of what is taken from the original work that is important, not the quantity.